Earlier this week I posted an article on this Blog about the decision in a Facebook case, In re: Facebook, Inc. Consumer Privacy User Profile Litig., No. 18-md-02843-VC (JSC), 2021 WL 3209711 (N.D. Cal. July 29, 2021) (USMJ). Here is a link to the article: https://insuranceclaimsbadfaith.typepad.com/insurance_claims_badfaith/2021/08/usmj-protects-facebooks-cambridge-analytica-documents-in-the-public-record.html.
I thought about two more things regarding that decision, thus this postscript times two. One thing is that the Magistrate Judge "grant[ed] Facebook's request to modify" a protective order entered earlier in that Multidistrict Litigation (MDL). She did more than modify an order by granting Facebook's request, however. Facebook asked the Magistrate Judge to change the scope of "the protections conferred by this Stipulation and Order," and she did. In re Facebook, 2021 WL 3209711, at *4.
So we have one party to the Stipulation in this case changing the parties' Stipulation, and we also have the Magistrate Judge changing it. My understanding of a stipulation while practicing law for 43 years is that it always, without exception, takes all parties to the stipulation to change it. If all the parties do not agree on what it says, then the thing is not a stipulation. It is something else, something as to which a Magistrate Judge can enter an order changing it, but it is not a stipulation no matter how many times they call it that.
The second reason for this Postscript is this: To say again what was said in the original article, the information at issue was already in the public domain. It apparently was part of an NBC News report "that released almost 7,000 pages of the disclosed Facebook documents, including the 46 documents at issue here." In re Facebook, 2021 WL 3209711, at *2. The fact that they were "disclosed" was a matter for the San Mateo County Superior Court in California. The case in which the Facebook documents were disclosed, apparently in violation of that court's protective order, is pending in that court. It is not pending in the federal court where the MDL is centered. It is not the job of any judicial officer in the federal court MDL to enforce orders entered by the San Mateo County Superior Court (which in any event seems fully capable of taking care of the matter itself).
Especially when one of the federal judicial officials rules in the MDL that "it is undisputed that the 46 documents were part of the public domain at the time of designation and were not disclosed in violation" of the stipulated protective order in the federal court proceeding. In re Facebook, 2021 WL 3209711, at *4.
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